The New York Sun
BY JOSH GERSTEIN – Staff Reporter of the Sun
September 12, 2007
Link: Click here
JACKSONVILLE, Fla. – A federal appeals court is struggling with the
case of a former Florida college professor who admitted to aiding
Palestinian Islamic Jihad but later insisted that his plea deal
precluded the government from calling him before a grand jury
investigating Islamic charities in Virginia. The 11th Circuit Court of
Appeals heard oral arguments for 45 minutes here yesterday about the
dispute’s circuitous journey through four federal courts, resulting in
the professor, Sami Al-Arian, spending nine months in jail, so far,
for refusing to testify before the Alexandria, Va.-based grand jury.

“This is such a mess,” one member of the three-judge appeals panel,
Rosemary Barkett, declared.

“It is a mess,” the prosecutor arguing for the government, Karin
Hoppmann, replied. “It’s a Gordian knot,” she added in a later exchange.

A vexing legal problem in the case stems from the fact that the
Virginia-based judge in charge of the grand jury, Gerald Lee, referred
the dispute about the meaning of Al-Arian’s plea deal to a Tampa-based
jurist, James Moody Jr., who accepted Al-Arian’s plea and oversaw an
earlier trial at which the Palestinian Arab activist was acquitted on
some charges. A federal prosecutor in Virginia backed the referral,
but the government later took the position that referring such legal
questions to another jurisdiction is illegal and unconstitutional.

Ms. Hoppmann, who is based in Tampa, said yesterday that the
Virginia-based prosecutor, Gordon Kromberg, made “a mistake” when he
agreed that the plea issue should be settled in Florida.

A lawyer for Al-Arian, Jack Fernandez of Zuckerman Spaeder, complained
that it was unfair to fault Al-Arian for seeking relief in Florida
when Judge Lee ordered him to go there and the government concurred.
“We’re being whipsawed. This is checkmate,” Mr. Fernandez said.

Judge Barkett expressed some sympathy with that view, wondering aloud
why Judge Lee did not wait for Al-Arian’s 11th Circuit appeal to be
concluded before jailing him for contempt.

The government and Al-Arian are also at loggerheads over the meaning
of his plea deal. He and his lawyers contend that they negotiated with
prosecutors to drop language about cooperation because he was bitter
about his treatment and insistent that he would not aid the government
in any way. Prosecutors acknowledge they dropped the language but they
say nothing in the agreement gave Al-Arian a license to defy
subpoenas. “I don’t see how you can manufacture some promise that he
wouldn’t be called before a grand jury that wasn’t in the plea
agreement,” a federal district court judge from Brooklyn handling the
appeal as part of a rotating pool of visiting jurists, Edward Korman,
said.

“You asked the district court below to enforce an agreement that
doesn’t have in it the provision that you want to enforce?” Judge
Barkett asked Al-Arian’s lawyer. “A plea agreement is not just like
any contract,” Mr. Fernandez said. Courts should not be complicit in a
situation where the government “inveigles a plea” with some inducement
outside the written agreement, he said.

In 1992, the 4th Circuit Court of Appeals, which includes Virginia,
ruled that prosecutors could be held to a no-testimony promise not
recorded in a formal plea agreement. However, the third judge assigned
to Al-Arian’s appeal, Stanley Birch Jr., said he saw little merit in
that decision. “To me, it’s contrary to logic,” he said. The most
contentious exchange yesterday came as Ms. Hoppmann dodged a question
about whether the government made any promises to Al-Arian during plea
talks. “I was not there. I do not know,” she said.

Apparently exasperated, Judge Barkett raised her voice, asking the
government attorney if “as an officer of the court” she was saying she
had no information at all about what transpired. Ms. Hoppmann
eventually quoted another prosecutor’s brief account of the
negotiations at another court hearing, but never said explicitly
whether she was aware of other details about the talks.

While no judge took a clear stance on the case yesterday, Judges Birch
and Barkett seemed inclined to void Judge Moody’s decision for lack of
jurisdiction. Judge Korman dismissed that issue as quibbling over “a
geographic line.” “That’s a geographic line Congress has set down,”
Ms. Hoppmann replied.

It’s not clear whether Al-Arian would benefit from a ruling vacating
Judge Moody’s decision. There are indications that, even without Judge
Moody’s guidance, Judge Lee might reject Al-Arian’s view of his plea
deal. In addition, Al-Arian, who has been in jail since 2003, has
about four more months to serve on the nearly five years he was
sentenced to following his guilty plea. The clock on that sentence
stopped running when Al-Arian was jailed for contempt.

Under federal law, Al-Arian cannot spend more than 18 months in jail
for civil contempt. However, prosecutors could charge him with
criminal contempt, which can result in an additional prison term of
indeterminate length. Al-Arian has agreed to be deported upon his release.

Shortly before the arguments were to take place yesterday, court
personnel indicated that the public would be excluded, although no
motion to close the courtroom was filed. As Al-Arian’s case neared,
extra marshals appeared.

During a break between earlier cases, this reporter gave a note to a
court clerk objecting to any closure. When the Al-Arian case was
called, Judge Birch said the courtroom would be cleared of spectators
so the judges could hear from the government and Al-Arian’s attorney
about whether the arguments should take place publicly. As those in
the gallery were being ushered out, this reporter asked aloud if a
member of the press could present arguments opposing any secret
session. Judge Birch declined, saying the court could “handle it.”

Within a few minutes, the marshals reopened the courtroom. “It must
have been your brilliant argument,” Judge Barkett said to this
reporter, facetiously.

“Do you want to argue your way out of it?” Judge Birch asked with a
chuckle.

“I’m going to keep my mouth shut,” the reporter replied.

While the appeal touches on a grand jury matter, which is usually
secret, the Virginia panel’s focus and Al-Arian’s status as a
so-called recalcitrant witness there have long been public in court files.

Judge Birch was appointed by President George H.W. Bush, Judge Barkett
by President Clinton, and Judge Korman by President Reagan.